Crone's Appeal , 1883 Pa. LEXIS 211 ( 1883 )

Mr. Justice Tbujstkey

delivered the opinion of the court,

As between the real and personal representatives of a de-' cedent, the personal estate is the primary fund which must be resorted to in the first instance for the payment of debts contracted by the testator or intestate. This principle does not control the creditor of the decedent whose debt binds both the personal and real estate; he may proceed against either the personalty in the hands of the executor or administrator, or the realty descended or devised. But if the creditor proceeds against the realty, the heir or devisee who has sustained the loss shall be allowed to stand in the place of the creditor to reimburse himself out of the personal estate, provided such reimbursement will not prejudice any other creditor or other party having an equal or more favorable claim than the said heir or devisee. This legal principle does not prevent a testator from directing out of what fund his debts shall be paid as respects his devisee, and he may charge his debts upon his real estate ; but to exempt his personal estate and charge Jais real, there must be express words or manifest intention.

This will provides, 1. That all the testator’s debts and funeral expenses be paid out of his estate ; 2. That his wife shall have the interest of one-third of all his personal estate absolutely, and the interest of one-third of his real estate during her life ; 3. That his son John and his children shall have a specific legacy ; and, J. That all the rest and residue of his estate, real and personal, shall be divided among his children, share and share alike. The personal estate is not expressly exempted from its primary liability for debts, and we think there is no intention manifested to exempt it, except that part which constitutes the specific legacy in the third item.

The personalty is the primary fund for the payment of legacies, as well as debts, unless relieved by charge upon the realty. It is too well settled for need of authority that a general bequest and devise of the residue of the real and personal estate, blending them together, creates a charge upon the realty • — the residue means what is left after the legacies are taken out. The whole of the testator’s property is liable for payment of his debts; the personalty shall first be exhausted before touching the realty unless the will directs otherwise. Legacies are not chargeable on the real estate, nor payable out of it, unless the will so provides. Where a testator gives certain legacies, either specific or general, blends his realty and personalty, and disposes of the residue, the necessary implication is, that he intended payment of the legacies out of the fund. Not a case has been cited where such blending was held to exempt the primary fund from payment of the debts. It may well be a circumstance indicative of an intention to so exempt, but alone it is not sufficient. After the debts are paid out of the personal estate, the balance, if any, is the fund for distribution to the next of kin or legatees. Where there is no balance, there is no estate, and a bequest of one-tliird of the personal estate, or all of it, fails. The only mode known to the law of ascertaining the value of such a legacy is to convert the personalty into money, pay the debts, and settle an account of tile administration.

On behalf of the widow it has not been directly claimed that the bequest to her is specific, but it is contended that the logical effect of the ruling of the court below would give her one-third of all the personal estate, and, also, the interest of one-third of all the real estate, undiminished by debts or expenses ; and that she is entitled thereto in accord with the case of McGlaughlin v. McGlaughlin, 24 Pa. St. 20. In that case the bequest was, “ I will that the whole of my household furniture and personal property, after paying my funeral expenses, shall be and remain the absolute property of my beloved wife.’1’ That was held a specific legacy, that is, a bequest of specified goods, distinguished from all other .goods or property of the testator, which .the widow could point to and claim as her own. Debts owing to the testator were not-included in the legacy, and as it does not precisely appear just what was ruled to be covered by the words, “ household furniture and personal property,” the decision does not rule the pending case. A mere bequest of “all my personal estate,” or a fractional part thereof, has never been held to mean a specific legacy. In Walker’s Estate, 3 Rawle 229, it was said, “A bequest of all a person’s personal estate generally is not specific.” And that the whole testamentary disposition must show an intention by the testator to discharge the personal estate, or it will be held liable for his debts. A gift to a widow of one-third1 part of the personal estate, in lieu of dower, is not specific, and for that reason, she is entitled to only one third of the balance after payment of debts: Martin v. Fry, 17 S. & R. 426.

Decree reversed, and it is considered and decreed that distribution be made as set out in the first report of the auditor and said report is confirmed. Appellee to pay costs. Record remitted for further proceeding.